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Minuk reveals Court of Appeal undermined Taman case prosecution

The Winnipeg news media has been clamouring for an answer from the Taman Inquiry for why drunk driving charges were dropped against Derek Harvey-Zenk, the off-duty police officer who rear-ended and killed a young woman in East St. Paul.

Tuesday, they got their answer.

And they didn't want to hear it. Which is why the reporters missed the big story revealed at the inquiry.

Special counsel Marty Minuk testified the evidence wasn't strong enough for alcohol-related charges against Harvey-Zenk to stand up in court. He accepted a plea bargain on the strongest case he had, dangerous driving causing death.

And he stood behind the joint recommendation for house arrest, even though the Manitoba government's official policy is to oppose conditional sentences for serious crimes. That policy reads:

"Generally Crown Attorneys should not recommend the granting of a conditional sentence, either as part of a plea arrangement or as a submission on sentencing or appeal in cases involving death or serious bodily harm."

Then Minuk revealed the true reason why Harvey-Zenk got no jail time---the Manitoba Court of Appeal.

The Taman Inquiry Transcript, July 29, 2008

"Q You would agree with me that the purport of this policy is to discourage what the government, the Department of Justice considers to be a form of sentencing that they judge not to reflect the denunciatory and deterrent impact of sentencing in those cases where someone has died or suffered serious bodily harm. There is an attempt here to try and get prosecutors on the same page to take a stand against this kind of sentencing?"

"A Now, that may well be the purpose of the policy, however, in practice, the discussions amongst defence lawyers and Crown attorneys, and vice versa, is about the appellate decisions, as opposed to the policy."

In other words, the government's policy is great when it comes to mollifying the public and showing that the government is tough on violent crime.

But in the real world, lawyers are bound by legal precedent, and in Manitoba, the Court of Appeal has tied the hands of prosecutors.

Not a single reporter in the city picked up on this vital testimony.

"It struck me that this is a policy here where I understand it, but at the same time, in my view as outside counsel, needs to be balanced with the state of the law in Manitoba. And just because the policy says that they generally should not recommend it, when all of the research that I had available to me from Manitoba cases is telling me this is what is the appropriate sentence, there is a conflict."

"And I chose to be guided by the appellate decisions directing the Provincial Courts, Court of Queen's Bench, on what was the appropriate sentence for these kinds of cases," said Minuk.

"…let me say that I think that the policy is difficult to reconcile with the day-to-day prosecutions in this particular area, and the fact that the -- wherever it may have been recommended by someone, in the cases that I've read, that there not be a conditional sentence for these types of offences, the Court of Appeal has reversed it," he added.

"And to the extent that my assessment was made based on the case law, and that I was not going to be arguing a case which was contrary to the decisions of the Manitoba Court of Appeal…"

You wanted the truth. But can you handle the truth?

The news media and the Inquiry prefer their own version of "truth"--- The off-duty policeman was drunk and he was spared a jail sentence because the special prosecutor, Minuk, was incompetent and because the Winnipeg and East St. Paul police conspired to hide the evidence of intoxication.

It's all a conspiracy.

*********************

Minuk outlined the holes in the evidence that precluded any prosecution for impaired driving.

* None of the police at the scene of the accident smelled liquor on Harvey-Zenk.

* The evidence of the paramedics who said they detected alcohol from Harvey-Zenk didn't mean he was over the legal limit.

* While it would have been enough to warrant a test from a roadside breath machine, there wasn't one at the scene.

* The officer who formally asked Harvey-Zenk for a breath sample at the East St. Paul police station wrote in his report that he asked for a blood sample. It's not illegal to refuse a blood sample. While the police at the station would testify in court that the request was for a breath sample, a judge might, based on the written report, give Harvey-Zenk the benefit of the doubt and throw out the charge.

* There were no witnesses who would say they saw Harvey-Zenk drinking before the accident. They could place him at a bar where other people were drinking, but nobody would testify they saw how much he drank, or even if he drank. And they could place him at a party after the bar closed, but, again, nobody would testify they saw him drinking. The group left the bar 4 l/2 hours before the accident which would leave him time to get under the legal alcohol limit for a driver.

* A waitress who thought she served a man that could be Harvey-Zenk eight or nine beers couldn't pick him out of a photo lineup.

* The accident analyst who attended would testify that Harvey-Zenk had 12-14 seconds to react before crashing into Crystal Taman's car, and he couldn't rule out that the accident was a result of fatigue or the driver falling asleep.

The Taman Inquiry has a pre-conceived answer to these facts---there was a cover-up by the police.

It's no wonder none of the police smelled alcohol from Harvey-Zenk, they're lying.

It's no wonder the group of police officers at Branigan's say they don't know how much he drank. They're lying.

And Minuk…he let them get away with it because his friend was representing Harvey-Zenk and he represented some of the policemen too.

Of course, Minuk did call in the RCMP to investigate whether Harry Bakema, the then-Chief of the East St. Paul police, should be charged with obstruction of justice. He said he was floored when informed that a police officer who attended the accident was saying, a year later and just before the preliminary hearing, that he was told by Bakema at the scene that Harvey-Zenk was "pissed."

******************

The RCMP report is one of the exhibits at the Taman Inquiry.

The RCMP essentially re-interviewed everyone who had been at the accident scene. No charges were ever recommended, although the report doesn't explain why. But the interviews of the witnesses do.

Jason Woychuk, the East St. Paul constable whose alleged statements scuttled the prelim, told the RCMP a vastly different story than Minuk was told. He said, just as he testified at the Inquiry, that Bakema told him Harvey-Zenk "might be" impaired. This would corroborate what Bakema said all along. Bakema testified he told Woychuk to see if he could smell anything from Harvey-Zenk after he sat in a warm car for a while.

And the RCMP report includes the observations of two Selkirk paramedics who examined Harvey-Zenk in the back of Woychuk's cruiser car. One said he detected a "stale beer smell." The other said he could detect the smell of liquor which he described as "noticeable, but not really strong."

Neither statement--- from the only people to spend any time with Harvey-Zenk ---would exactly support a claim that he was "pissed" at the scene.

Of course, we haven't yet heard from Inquiry counsel David Paciocco as to whether the RCMP officers conducting the obstruction of justice investigation were also in on the cover-up.

Minuk was attacked by both Paciocco and the press for going soft on the investigation of Harvey-Zenk.

Paciocco, in a preview of the Inquiry's final report, said that Minuk failed to personally interview witnesses.

(He said he would have before the second preliminary hearing, but it was stopped once Harvey-Zenk agreed to plead guilty.)

And he said Minuk failed to pressure East St. Paul police to get a search warrant for the credit card records from Branigan's to see if Harvey-Zenk paid for his drinks with his Visa card.

(Minuk said he asked for the warrant four times. East St. Paul's new chief of police Norm Carter testified that to get a warrant he would have to tell a magistrate he had clear and probable grounds that the information he wanted was likely in those records. But he had no such grounds since nobody could say if Harvey-Zenk had anything to drink at Branigan's or if he paid with a credit card. He said he refused to apply for what was simply a fishing expedition. And therefore illegal.)

But what the detractors really mean is that Minuk failed to crack the cover-up centred on the alleged police drinking party, first at Branigan's and later at the home of one of the Winnipeg policemen.

If only the Winnipeg Police standards unit had squeezed the partying police officers harder, the cover-up would have been cracked. If only the RCMP had been called in to grill the stinking liars, the truth would out. If only Minuk hadn't rolled over…Well, you get the picture.

The Inquiry lawyer challenged Minuk for failing to be skeptical about the evidence of the police at Branigan's.

The police certainly couldn't be called as prosecution witnesses since they had nothing to add to the prosecution's case, he said. So they would have been called as defence witnesses, if the case went to trial, and Minuk would be in the position of having to challenge the testimony of 23 Winnipeg police officers. Wasn't that why he dropped the impaired driving charges?

There's only one Perry Mason.
Raymond Burr is dead, and you, David Paciocco, are no Raymond Burr.
So save the theatrics for the Commissioner's hotel room.

*******************

How exactly would anyone cross-examine 23 Winnipeg police officers? With the evidence of Chelsea O'Halloran, of course.

O"Halloran the server at Branigan's the night the police came in, is the key witness at the Inquiry. She's the only one who says Derek Harvey-Zenk was drunk the night before he killed Crystal Taman, or at least, a guy just like the guy who came to a Super Bowl party and ate a ton of chicken wings and had a pregnant wife. She says she served this guy who is just like Super Bowl guy eight or nine beers.

Harvey-Zenk loved chicken wings. And his wife had been pregnant at Super Bowl.

It's just that Chelsea couldn't say he was Super Bowl guy even though police gave her two chances to pick him out of a photo lineup.

Who knows, there could be another guy in Winnipeg who knocked up his wife and who likes wings.

Oh, Chelsea conceded that her estimate of eight beers for man-who-might-be-Harvey-Zenk was a guess. Commission counsel rushed to her aid.

BY MR. PACIOCCO:
Q Now, there are wild guesses and there are educated guesses. Are you able to help the Commissioner out in terms of whether, or where this figure might fit on that continuum in your estimation?
A It would be an educated guess.

That's what Marty Minuk had to work with.

But Chelsea now admits she lied to investigators; she said then that none of the cops was drunk and she says now that lots of the cops were drunk, just what the Inquiry wants to hear. This has given her sainted status in Paciocco's eyes.

You know the equation: As the only liar, she's the only one telling the truth. Hey, it makes sense in the world of show trials.

And Chelsea had lots to say about the party at Branigan's and the press ate it up.

*****************
Animal House in blue.

* The police were drunk, rowdy, and obnoxious, testified the newly minted Chelsea.

* They joked at her behind.

* A police woman stood on her chair and yelled.

* They scarfed up the specially-priced wings and sucked up the beer special, $2.75 a pint.

At the end of the night the bill was over $l000. What wildmen.

But Minuk would have known putting Chelsea on the stand would be like throwing raw meat to hungry lions.

The reality of the night at Branigans is a lot less than the reporters want to believe. The $1000 ring-out was actually Chelsea's sales for her entire eight-hour shift.

Half was for food.

The police started drifting into the bar at 11 p.m. Chelsea originally estimated there were 25-35 cops. But three interviews later, her memory was "refreshed" and she told the Inquiry she now remembered there were 20-25.

Pacicco has the names of 26 police officers who went to Branigan's that night. Who told him? Why, the police who were there and who didn't try to hide who else was there, freely naming everyone they could remember.

Somehow three have dropped off the list of conspirators and Pacicco only refers to 23partiers.

And some party.

The police told investigators they weren't celebrating anything. Somebody just said they should get together one night, and this was the night. They came to sit around, kibbutz, and eat wings. They came in dribs and drabs. Some came early and left early. Some stayed an hour, some for 3 ½ hours until closing time.

And rowdy? Hey, you know it.

They had arm wrestling contests.

Whew. Talk wildmen.

Chelsea never mentioned seeing any arm wrestling, although that's a little hard to hide. And it might explain why someone was cheering, no?

The police drank 68 pints of beer over the course of 3 ½ hours. If 20 of them had 3 beers each, the rest could have shared the other eight.

Wow, what was this? A commercial for responsible drinking?

Pacicco had to introduce the possibility of invisible free pitchers of beer circulating at the gathering. They never show up in the bill, so they must be free.

And none of the police said they were drinking pitchers, so they must be invisible, although Chelsea said she remembered (or had her memory refreshed) carrying pitchers of beer.

One officer said his plan was to buy a pitcher of beer and top up everyone's drink. But the bartender told him it was cheaper to buy individual pints. So he had a pint and went home.

Darcy Gerardy, Branigan's night manager, was a witness at the Taman Inquiry. When the regular bartender went home at 12:30 a.m. the morning of the fatal accident Gerardy took over bartending duties. He agreed with a suggestion from associate commission counsel Vincent Clifford that he "probably" handed out free pitchers of beer that night.

But it took lawyer Keith Labossiere, representing the Winnipeg Police Association, to point out that while the sales records showed 19 comp'ed shots of liquor given away throughout the day, the number of comp'ed pitchers of beer was shown as --- ZERO.

Was Mr. Clifford trying to mislead the public?

Was he---gulp---part of a conspiracy?

See how easy it is.

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